NOTICE is given that an application has been made to the Commission in Court Session by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees for an order pursuant to section 72A(2) of the Industrial Relations Act 1979 (WA) regarding the right of an employee organisation to represent the industrial interests of all outside employees employed by the City of Rockingham who are eligible for membership of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees.

This matter will be listed for hearing before the Commission in Court Session on a date to be fixed, which is not to be before the expiration of 30 days from the day on which this notice is first published. 

This application may be inspected by appointment at Level 17, 111 St Georges Terrace, Perth by any interested person without charge.

The full Notice can be read here.

The Public Service Appeal Board has dismissed the appeal of a Zookeeper against her dismissal, finding that the appellant’s failure to ensure that enclosures were securely locked would cause her employer to lose confidence in her ability to conduct her role without making errors.

Background

The appellant was employed as a Zookeeper by the Director General, Department of Biodiversity, Conservation and Attractions at Perth Zoo. The appellant was dismissed from her role, following an incident where she failed to secure the gate padlock to the sun bear exhibit.

Contentions

The appellant argued that the dismissal was unfair taking into account her length of service, her contrition and acceptance of responsibility, and the extenuating circumstances of the appellant suffering work-related stress, anxiety and burn out. The appellant contended that the termination of her employment was a disproportionate penalty to the conduct, and that the mistakes concerning securing enclosures over a period of twenty-two years do not constitute a pattern of behaviour. The appellant sought to return to her position with adjustments to her work arrangements.

The respondent contended that the appellant had made similar errors, and referred to previous instances where the appellant had failed to secure enclosure gates, resulting in the escape of a sun bear and an otter pup. The respondent gave evidence that securing of enclosures is a fundamental element of the role and must be performed at a consistently high standard. The respondent noted that at that time, the appellant was advised that further mistakes may result in disciplinary action, including dismissal.

Findings

In considering the facts, the Board acknowledged the unusual environment of Perth Zoo. The Board found that the securing of enclosures was a fundamental element of the role of a Zookeeper, and that the repeated errors by the appellant made it difficult for the Board to be confident that the appellant could conduct her role.

The Board considered that, where the appellant first raised concerns for her workload, that the respondent should have conducted a more thorough assessment and evaluation of the situation. The Board noted, however, that it was unclear how these workload concerns impacted the appellant on the day of the incident that led to her dismissal.

The Board held that it was not within the power of the Board to make adjustments to the working arrangements that the appellant requested, and dismissed the appeal.

The decision can be read here.

The Commission has made a declaration regarding the interpretation Department of Justice Prison Officers’ Industrial Agreement 2020 regarding whether prior service in a substantive appointment counts as prior service for the purposes of clause 48.

Background

In May 2021, the Minister reduced a Senior Prison Officer’s classification following a disciplinary process. In November 2021, the Minister directed the Officer to act as Senior Officer on a higher duties basis, paying her a higher duties allowance at the ‘1^st Year’ increment of the Senior Officer salary range. After the demotion, the Minister did not recognise the Officer’s prior service in her substantive appointment as Senior Officer.

The Union brought an application seeking interpretation of clause 48. The Union sought an answer to the following question:

When paying a higher duties allowance under sub-clause 48.2 of the Industrial Agreement, must the employer pay an amount equivalent to the increment the Officer had attained in the previous 18 months, regardless of whether:

• the Officer attained the increment through higher duties or substantive appointment; or
• the Officer had a break in acting of less than 18 months following a disciplinary outcome?

Contentions

The Union contended that the parties to the Agreement intended to recognise all service at a higher classification in the previous 18 months when calculating increments, and that there is nothing to indicate that the parties intended the entitlement to apply differently to employees whose break in service was due to a disciplinary outcome.

The Minister contended that the construction of the word ‘act’ in the context means ‘acting’ means temporarily working in a role in that sense of acting, and not just simply working in a role, whether substantively appointed. The Minister also contended that it is not unjust that an employee does not ‘get the value’ of their prior service for higher duties allowances, as the main rationale for a demotion for disciplinary reasons would be that the conduct the subject of the disciplinary action makes the employee unsuitable for the higher role, and that it is not unfair that the employee would not get the benefit of that prior service.

Findings

The Commission considered that the definition of acting in the context means ‘serving temporarily; substitute’ and not ‘working in’. and that the objective intention of the parties was therefore to give the higher increment on acting to employees who have acted in a higher position on a temporary basis, not a substantive basis, in the previous 18 months. The Commission further considered that where an employee is demoted for disciplinary reasons because their conduct the subject of the disciplinary action made them unsuitable for the higher position, it would not be unfair that the employee would not get the benefit of prior service when acting up.

The Commission considered that the parties did not intend to recognise all service at a higher classification in the previous 18 months when calculating increments. For the purposes of sub-clause 48.2, only prior service in an acting appointment qualifies as service, and prior service in a substantive appointment does not qualify as service.

The decision can be read here.

The Commission has varied and updated the Electrical Trade (Security Alarms Industry) Award, 1980 removing various respondents.

The applicant, the Electrical Trades Union WA (ETU), applied to vary the Electrical Trade (Security Alarms Industry) Award, 1980, seeking to increase a number of allowances in the Award and remove from Schedule One – Schedule of Respondents to remove a company which is deregistered and update the current names of the other respondents.

The Commission noted that the application to vary the allowances was unopposed. The allowances were last varied on 1 January 2022: [2022] WAIRC 0044; (2022) 102 WAIG 110 and the variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that the application in relation to substituting the Award’s respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents listed in the Award who were deregistered corporations, and it was desirable to update the names of those corporations who remained registered, but had changed names. The Commission considered that it was appropriate to update Schedule One to the Award accordingly.

The decision can be read here.

The Commission has varied and updated the Radio and Television Employees Award removing various respondents.

The applicant, the Electrical Trades Union WA (ETU), applied to vary the Radio and Television Employees Award, seeking to increase a number of allowances in the Award and remove from the First Schedule – Schedule of Respondents persons and entities who are no longer trading in the radio and television industry or no longer in existence.

The Commission noted that the application to vary the allowances was unopposed. The allowances were last varied were on 1 January 2022: [2022] WAIRC 0023; (2022) 102 WAIG 132 and the variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that the application in relation to substituting the Award’s respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents listed in the Award who had ceased to exist, ceased to trade in the radio and television industry, or ceased to be covered by the Award, and considered that it was appropriate to update the First Schedule to the Award accordingly.

The decision can be read here.